Parliament has been racing through COVID-19 legislation in preparation for New Zealand entering the COVID-19 Protection Framework (CPF) at midnight tonight, Thursday 2 December.
Employers operating food and drink businesses; gyms; tertiary education providers; event providers; and ‘close proximity’ businesses need to be aware of these changes.
COVID-19 Response (Vaccination) Legislation Act (Vaccination Act).
The Vaccination Act has amended the COVID-19 Public Health Response Act 2020 (PHRA) and the Employment Relations Act 2000.
Under the PHRA, the Minister can specify work that cannot be carried out by a worker unless they are vaccinated. Where this occurs, a Person Conducting a Business or Undertaking (PCBU) must not allow the worker to carry out such work unless the worker is vaccinated, and the worker has a corresponding duty not to work. For compliance purposes, a PCBU is entitled to “request” an affected worker’s vaccination status. If the worker does not respond, the worker is treated as unvaccinated.
The Vaccination Act also amends the Employment Relation Act to allow for termination of employment where work must be carried out by a vaccinated worker. It puts procedural steps in place that must be met before termination can be affected. Where this is the case, the greater of four weeks paid written notice of termination or the paid notice period specified in the employee’s employment agreement must be provided. The notice period is paid by the employer despite the fact an unvaccinated worker will not be at work.
Finally, termination of an employment agreement may be cancelled if, before the close of the notice period, the employee becomes vaccinated. An employer may be able to resist cancellation of notice of termination if this would create an “unreasonable disruption” to the business. We expect an unreasonable disruption will include a situation where an employer has hired a new worker to cover the vacancy; or potentially where the business has been reorganised, e.g., where an owner of the business has filled that vacancy.
COVID-19 Public Health Response (Vaccinations) Amendment Order (No 6) 2021 (Amendment Order).
The Amendment Order amends the COVID-19 Public Health Response (Vaccinations) Order 2021 from 3 December 2021.
The Amendment Order introduces new groups of workers that must be Covid-19 Vaccination Certificate compliant (CVC compliant). This means fully vaccinated with an approved vaccine. The classes of workers are those who carry out work at:
- A food and drink business or service.
- A gym.
- Events, regardless of whether the work is carried out before people arrive at or leave the event.
- A “close proximity business” (generally, a business or service to the extent that it carries on activities that it cannot undertake without physical contact, or close proximity, between people; or a worker being closer than 1 meter to the client).
- The premise of a tertiary education provider in a region that is at ‘red level’ under the CPF.
The Amendment Order has far-reaching implications for these newly mandated sectors/industries – it appears that all workers must be vaccinated regardless of whether the business is operating with CVCs or not.
This raises the difficult question of what an employer can do where it has a positive duty to prevent unvaccinated workers in these classes from attending work from 3 December 2021. Equally, the termination process will require careful navigation to ensure the procedure is followed fairly.
At first glance, and after many glances, the raft of legislation that has been passed over the last week or so are difficult to traverse. Never fear, if you need advice, our employment team or your usual contact at Hesketh Henry is a phone call or email away.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.